ABSTRACT INTRODUCTION I. THE TRADITIONAL KNOWLEDGE QUESTION A. The Backlash against TRIPS B. What Is Traditional Knowledge? C. The Existing Legal Framework, Biopiracy and Traditional Knowledge D. Creating New Categories of Intellectual Property E. Reaching Agreement on an International Legal Instrument to Protect Traditional Knowledge II. JUSTIFYING INTANGIBLE PROPERTY RIGHTS A. Classic Approaches to Intellectual Property Law B. An Instrumentalist Approach 1. The International Treaties Support a Balanced Approach III. A TRADITIONAL KNOWLEDGE RIGHT A. The Objectives of Traditional Knowledge Protection 1. Commonality between the Policy Objectives of Intellectual Property and Traditional Knowledge a. Exclusion b. Economic Rationale c. Innovation 2. Equity-Oriented Goals as a Major Distinction a. Protecting Cultural Heritage b. Promoting Value and Respect B. Traditional Knowledge Challenges 1. The Public Domain as a Eurocentric Concept 2. Perpetual Protection 3. Identifying the Traditional or Indigenous Traditional Knowledge Producing Community C. Other Intergenerational Knowledge Goods 1. Cultural Exchange 2. Vinegar and Silver as Examples IV. ADDRESSING THE PROBLEM A. The Need for a Balanced System 1. Beyond the North-South Framework 2. A Question of Justice B. Intellectual Property Related Solutions that Don't Require an Expansion of the Existing Regime 1. Accounting for Diverse Circumstances 2. Mediation 3. Capacity Building 4. Education 5. National Measures CONCLUSION INTRODUCTION
Some communities possess useful knowledge and traditions that have been passed down from one generation to another. These traditional practices and artworks, or the medicinal knowledge may be highly valued by the community, and possibly by others. However, intellectual property law does not necessarily protect knowledge relating to the medicinal uses of plants, reproductions of communal works, traditional cultural practices, or spiritual rituals. This is because much of this knowledge is not new or cannot be identified as having been created by a particular individual. (1)
Far from protecting this knowledge, intellectual property law may, in some instances, have facilitated the taking and commercialization of this traditional knowledge by individuals or entities that are external to the traditional knowledge-generating community. The result is often an inequitable situation in which the knowledge is used, including for commercial purposes, without attribution or compensation to the knowledge-generating community. This use or taking without consent or compensation has been characterized as "bio-piracy" or "misappropriation." (2) The taking and use (or misuse) of the cultural works, genetic resources and knowledge of traditional and indigenous peoples, has led to a call to protect traditional knowledge and traditional cultural expressions. (3) This includes the possibility of legislation to create a sui generis traditional knowledge right.
Focusing on the issue of equity, (4) this article uses an instrumentalist approach to query whether a new intangible property right that is based on an intellectual property model is likely to meet some of the distributive justice goals of traditional knowledge holders and developing countries. Part of the subtext of the traditional knowledge narrative is about the effects of the history of colonialism. With respect to the intersection between traditional knowledge and intellectual property law, it becomes a discussion about equity, fairness, and what is perceived to be a Eurocentric international intellectual property system that favors Western methods of knowledge creation. (5)
One of the substantial critiques of international intellectual property law and the World Trade Organization ("WTO") Agreement on Trade-Related Intellectual Property Rights ("TRIPS") (6) has been its impact on access to affordable knowledge goods. I suggest that it is useful, therefore, to assess the potential distributive justice effects of a new intangible property right before it is created. With the goal of access to affordable knowledge goods in mind, I explore whether a sui generis traditional knowledge right, which may include perpetual protection, advances this goal. I start from the premise that knowledge is a public good and that access to knowledge goods is in the public interest. Intellectual property protected goods should therefore be affordable and accessible. Moreover, access to affordable knowledge goods is a laudable and worthwhile development goal, and one which the various forms of intellectual property should support. (7)
The goal of access to affordable knowledge goods is relevant to the traditional knowledge discussion because developing countries are the primary advocates of traditional knowledge at the World Intellectual Property Organization ("WIPO"). Furthermore, their concerns about the TRIPS can be described as largely related to the effect of intellectual property rights on access to affordable knowledge goods. (8) Patents and copyright, in particular, have been criticized on this basis. (9) It is not a stretch to state, as a general proposition, that intellectual property generating countries have benefitted from TRIPS far more than developing countries. (10) Further, the misappropriation allegations made by developing countries and indigenous peoples appear to be valid and well-documented. (11) There are clearly some problems with the current intellectual property structure.
The traditional knowledge dialogue has advanced to a stage where there is growing recognition of the need to value and acknowledge the contributions of indigenous and local communities. (12) There is an attempt to maximize the benefits of traditional knowledge for these communities while minimizing the harmful effects of misappropriation. (13) As part of this effort, there have been various studies on the protection of traditional knowledge, and there is a wealth of valuable scholarship on the relationship between traditional knowledge and intellectual property. (14) Numerous scholars have concluded that traditional knowledge can be only partially protected under the existing system. (15) Others have queried whether it should be treated as property at all. (16)
The question that remains is how best to address the concerns of traditional knowledge generating communities. Yet, the traditional knowledge right that some developing countries and traditional knowledge proponents support is based on an intellectual property model, and therefore, has the potential to produce problems not unlike those which have resulted under the current system. An international sui generis intellectual property right for traditional knowledge may hinder access to affordable knowledge goods, including for indigenous and local communities.
Drawing on the notion of intellectual property 'from below,' (17) this paper aims to contribute to the discussion by evaluating the utility of an intellectual property model for the protection of traditional knowledge. This assessment is done in light of some of the stated goals of traditional knowledge protection, (18) and with a view to the potential impact of proprietary traditional knowledge on affordable knowledge goods. (19) The creation of a new property right may serve as both an offensive and defensive measure. This article cautions that a legally binding instrument that creates an exclusive proprietary traditional knowledge right may not ultimately benefit indigenous and local communities.
While it is not entirely clear what an international legal instrument to protect traditional knowledge might look like, a sui generis regime to protect such knowledge has been proposed. (20) This is because this subject matter does not easily fit within the existing categories of intellectual property. A sui generis regime could result in a new intangible property right that will exclude anyone other than the rights holders from making use of this intergenerational knowledge without consent. Possible characteristics of a traditional knowledge right include perpetual protection, protection of historical communal cultural works, and protection of knowledge that may be useful but that is not be inventive or creative according to the standards of intellectual property law. (21)
In my view, there are two main difficulties of traditional knowledge that render the benefits of a sui generis intellectual property style traditional knowledge right questionable. First, the absence of clear consensus about the meaning of the indigenous or local person creates serious difficulties in defining the scope of application of the right. I acknowledge, however, that there may be various legitimate reasons for this lack of consensus, including historical and political reasons, which go beyond the scope of the discussion in this paper. Second, the proposed traditional knowledge right does not rectify the inequities caused by the excesses of the current system. It seeks to address the problems by expanding the intellectual property system rather than attempting to correct the existing flaws by contracting the regime. (22)
For the purposes of this paper, I approach the issue of traditional knowledge from an intellectual property perspective, rather than focusing on the broader issue of indigenous rights. Further, since there is no widely accepted precise definition of tradition knowledge, in evaluating the potential consequences of a sui generis intellectual property style traditional knowledge right on accessible and affordable knowledge goods, I temporarily disregard the ethnic limitations that are inherent in the definition and treat all intergenerational knowledge as having equal value. In other words, in assessing the implications for cost and access, I assume that all communities potentially generate knowledge that could fit within the parameters of traditional knowledge.
I take this approach in order to assess the...